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2021 DIGILAW 448 (GUJ)

ZAKIRMIYA HAYATMIYA SAIYAD v. STATE OF GUJARAT

2021-06-18

A.S.SUPEHIA

body2021
JUDGMENT : 1. On 11.12.2020, this Court, while recording the submissions advanced by the learned advocate for the applicant in detail, and in light of the seriousness of the allegations made in the present application against the police officer, had issued directions to the Commissioner of Ahmedabad City as well as to the Assistant Commissioner of Police (Mahila Police Station) to file appropriate report with regard to the involvement of the Police Officers in the matter and also the complicity of the applicant in the offence. 2. As recorded in the order dated 14.06.2021, thereafter, comprehensive reports of both the afore-noted officers were ordered to be taken on record. This Court has perused the reports. 3. By way of the present application filed under Section 438 of the Code of Criminal Procedure, 1973 (Cr.P.C.), the applicant-accused has prayed for bail in connection with the FIR being C.R.No.11191024201414 of 2020 registered with Ramol Police Station, Ahmedabad for the offences under Sections 354A(1)(i), 354B, 354D, 376(2)(n), 377, 108, 506(1), 294B and 114 of the Indian Penal Code, 1860 (IPC). 4. The case of the prosecution in brief is that the prosecutrix is a 26 years of lady and is studying in second year LL.B. It is alleged by her, that the applicant had met her near the gate of her college on 04.07.2013, and asked her to drop her at her house in the car since he would be passing near that area, but instead he had taken her to Mukhi Farm, where he forcibly grabbed and abused her and thereafter she was subjected to rape. 5. It is alleged that there were CCTV cameras installed in the farm and her objectionable photos and videos were recorded. Thereafter, time and again, she was forced to come in the farm house and when she tried to resist, the applicant had threatened her to publish those photos and videos. 6. On 14.01.2016, the prosecutrix was taken to Anjali Guest House near Chiloda and was again subjected to forcible intercourse and lastly in that guest house, in the month of July-2018, she was again subjected to such ordeal. 7. 6. On 14.01.2016, the prosecutrix was taken to Anjali Guest House near Chiloda and was again subjected to forcible intercourse and lastly in that guest house, in the month of July-2018, she was again subjected to such ordeal. 7. It is further stated that once at the Mukhi Farm, she had inflicted cuts on her own hand with blade, for which the applicant got her treated by a doctor and thereafter she was shifted to her residence from Vastral to the present address, however, the applicant used to follow her there also. On being encouraged by her sister, she made a complaint to Ramol, Amraiwadi and Mahila Police Stations, however, she did not pursue such complaints as she was threatened by the present applicant’s elder brother Abdulbhai and his son Mohsin. It is further alleged that the co-accused Abdulbhai and Mohsin threatened her that acid would be thrown on her. It is alleged because of such physical and mental harassment by the applicant, she tried to commit suicide by hanging on 14.09.2020, but she was saved by her brother and neighbours and was taken to the L.G.Hospital. Ultimately , the FIR has been filed. 8. Learned advocate Mr.Vaibhav Vyas appearing for the applicant has submitted that in fact the aforesaid allegations are absolutely false. He has also referred to the order dated 11.12.2020 passed by this Court, wherein it was recorded that similar complaints filed by the prosecutrix before the police were filed and no action was taken against the applicant due to the conduct of the prosecutrix. As recorded by this Court in order dated 11.12.2020, on the submissions of the learned advocate appearing for the applicant with regard to the compromise/ settlement arrived at between the applicant, this Court in the order dated 14.06.2021 had specifically recorded that three complaints were filed by the prosecutrix against the applicant and the first report was filed by Shri K.I.Dave, Police Inspector, Ramol Police Station dated 20.05.2019; second report is filed by Shri C.P.Rao of Amraiwadi Police Station dated 11.08.2019 and third report is filed by Shri N.S.Vasava of Mahila Police Station dated 04.12.2019. It was stated that the aforesaid reports suggest that the complainant had, in fact, compromised with the applicant and no further action was taken on her complaint(s). It was stated that the aforesaid reports suggest that the complainant had, in fact, compromised with the applicant and no further action was taken on her complaint(s). He has submitted that the aforesaid reports reveal that the complainant refused to get her statement recorded and thus, the present FIR has been registered with an oblique motive for extorting money from the applicant. . 9. The Court had also recorded the fact in the order dated 11.12.2020 that the prosecutrix had filed an affidavit dated 10.12.2020 annexing the representation dated 03.10.2020 made to the Police Commissioner, alleging that she was being pressurized by the police officers, which led her to make unwarranted statements. In the representation, she has named Shri K.I.Dave, Police Inspector, Ramol Police Station, and the administrator, Shri Jaydev Gadhvi, who were acting in connivance with the applicant. Pursuant to the aforesaid order dated 11.12.2020, the Police Commissioner, Ahmedabad City, had prepared a report with regard to the complicity or involvement of the concerned police officers in the entire episode. The Report dated 10.06.2021 of the Police Commissioner, Ahmedabad City reveals that the allegations made by the prosecutrix appears to be prima facie true and it is stated that the police officer has acted as unbecoming of the Government servant and accordingly departmental inquiry is contemplated against one ASI Mr. Pradeepbhai @ Chakabhai Barot. Thus, the report dated 10.06.2021 takes care about the contentions raised by the present applicant with regard to the written complaint and compromise made by the present prosecutrix. 10. Leaned advocate Mr. Vaibhav Vyas has further submitted that the applicant has fully cooperated with the investigation and his blood sample, clothes and the mobile phone have been seized by the Investigating Officer and now no recovery or discovery is required and hence, the present applicant may be granted anticipatory bail. Along with the affidavit dated 15.06.2021, the applicant has produced some photographs in his defence and he has stated that he has a CD containing audio recording as well as transcript with regard to the behavior of the prosecutrix. It is further submitted that by reading the contents of the FIR, it can be presumed that the alleged attempt to suicide committed by the present prosecutrix is staged and being a law student, she has cleverly designed her suicide. It is further submitted that by reading the contents of the FIR, it can be presumed that the alleged attempt to suicide committed by the present prosecutrix is staged and being a law student, she has cleverly designed her suicide. It is submitted that the entire circumstances as narrated hereinabove, reveal the immoral intention of the prosecutrix and hence, the custodial interrogation of the applicant is not required. 11. Vehemently opposing the aforesaid submissions, learned APP has placed reliance on the report of the Assistant Police Commissioner, Mahila Police Station, Ahmedabad City dated 09.06.2021 and has submitted that the prosecutrix has very noticeably stated the offence, which is committed by the applicant. It is submitted by the learned APP that her statement under the Provisions of Section 164 of the Cr.P.C. is also recorded, in which, she has maintained her version of being sexually harassed by the present applicant. It is submitted that the investigation is in progress and looking to the seriousness of the offence and the complicity of the applicant, the applicant may not be released on anticipatory bail. He has further placed reliance on various statements of witnesses, who have supported the case of the prosecution. 12. The Court has threadbare perused the reports and has also considered the submissions advanced by the learned advocate for the respective parties. 13. The contents of the FIR as recorded herein above, indicate the seriousness of accusation leveled against the present applicant by the prosecutrix with regard to the manner in which the offence is allegedly committed. The statements of the witnesses and the report of the Assistant Police Commissioner, Mahila Police Station, coupled with the statement of the prosecutrix recorded under the provisions of Section 164 of the Cr.P.C, make an impression that the applicant cannot be released on anticipatory bail. The Court has also considered the statements of witnesses, however, any observations at this stage, would affect the case of the applicant in grant of regular bail or the trial proceedings. 14. With regard to the specific averments made in the present application before this Court about the previous complaints filed by the prosecutrix, as recorded hereinabove, an inquiry has been initiated against the erring police officers. The factum of settlement in the earlier complaints will not dilute the gravity of offence or the statement made by the prosecutrix under the provisions of Section 164 of the Cr.PC. The factum of settlement in the earlier complaints will not dilute the gravity of offence or the statement made by the prosecutrix under the provisions of Section 164 of the Cr.PC. The fate of the settlement/statement will be determined in the trial proceedings. 15. With regard to the photographs and the CD, on which, the applicant is placing reliance, it is always open for the Investigating Officer to collect all the evidence and if any document is necessary or desirable for the defense of the accused, the same can be taken care of by the trial court under the provisions of section 91 of the Cr.P.C. 16. While keeping in mind the parameters enumerated by the Supreme Court in the case of Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 31, in dealing with the applications under section 438 of the Cr.P.C, I am of the considered opinion that the applicant is not worthy of anticipatory bail in wake of the nature and gravity of the accusation and the role attributed to the applicant. The case of the prosecution does not appear to be tainted with frivolity. 17. Under the circumstances and in light of the foregoing observations, the application is rejected. Rule is discharged. 18. After the order was dictated, learned advocate Mr.Vaibhav Vyas has requested for extension of the interim relief, which was in operation. The same is vehemently opposed by learned APP and has submitted that as per the settled law, once the application filed under Section 438 of Cr.P.C. is rejected. The interim relief cannot be extended. The request is refused since the extension of interim relief by this Court would amount to indirectly granting the relief of anticipatory bail.